A High Court judge has criticised the insurance industry over a failed attempt to have noise-induced hearing loss (NIHL) reclassified as an injury rather than a disease, in a bid to reduce the level of pre-Jackson success fees defendants would have to pay.
Ruling in a group of four test cases brought against BT, Mr Justice Phillips said that the “defendant’s insurers’ attempt to re-open (if not renege on) the industry agreement made in 2005 does them little credit”.
Before 1 April 2013, disease cases that settled attracted a fixed success fee under the CPR of 62.5%, as opposed to the 25% applied to injury claims, figures which had their origins in the agreement brokered by the Civil Justice Council.
Ruling in Dalton & Ors v British Telecommunications Plc  EWHC 616 (QB), Phillips J said that following a number of inconsistent decisions at district judge level, a regional costs judge directed that the classification of NIHL be determined by a High Court judge as a preliminary issue in costs proceedings in four nominated cases.
He recounted that the insurers were encouraged to take the point by the 2012 decision of Mr Justice Males that non-freezing cold injury was an injury rather than a disease; Males J had said that where it was not clear, the court should apply the “natural and ordinary meaning” of the word ‘disease’.
But comprehensively rejecting the insurers’ argument that this meant NIHL should be seen as an injury, Phillips J concluded: “I have set out [examples] of NIHL being categorised as an occupational disease in medical literature, legislation, House of Lords and Supreme Court decisions, legal texts and the pre-action protocol for disease and illness claims, all of which goes to demonstrate that, consistently with the ‘industry’ agreement and the Civil Justice Council report of that agreement, NIHL may properly be categorised as a disease.”
The judge said that “to seek to limit such success fees to 25% is an opportunistic attempt to avoid part of the overall bargain (in relation to NIHL) whilst taking the benefit of the remainder (for example, in relation to asbestos claims, fixed at 27.5%)”.
He added that to the extent tinnitus is a symptom of NIHL or otherwise is caused by exposure to excessive noise, it is also a disease.
Also, “in the hope of clarifying a further area where disputes may arise”, Phillips J said vibration white finger would also meet the definition of a disease.